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Monday, November 27, 2006

More on the "War"

Over at Balkinization, David Luban notes the recent discussion over whether we should call the conflict in Iraq a "civil war," but he quickly moves on to the issue of whether "war" is the right label for the conflict between the United States and Al Qaeda. He asks if it was "a disastrous mistake to label the conflict with Al Qaeda a 'war'" and acknowledges that many in the human rights community think that it was. He continues:

I don’t see matters that way. The U.S. government correctly interpreted 9/11 as an act of war, and retrospectively observed that Al Qaeda’s earlier attacks on the U.S.S. Cole and the U.S. embassies in Tanzania and Kenya were also acts of war. That is because they formed a pattern, indicating a plan and a campaign. I think this is right. While it may sound peculiar to say that a nation could be at war for several years without knowing it, there is nothing odd about noticing a pattern among attacks where at first there seemed to be no pattern. Most importantly, what makes these patterns of attack a "war" was the political reason they took place. They were launched by an enemy that had a political aim (restoring the Arab world to the greatness of a unified caliphate), a grand strategy (inciting popular uprisings against despotic Arab regimes), and a set of tactics (high-visibility terrorist attacks against Western targets, selected on political grounds). If war is politics by other means, this is war. (However, the Al Qaeda grand strategy has been a dismal failure. No popular uprisings occurred in the Arab world after 9/11, and the only despot who has fallen is Saddam Hussein, thanks to the U.S. rather than to Al Qaeda. Through the ironies of the Law of Unintended Consequences, Al Qaeda’s long-term plan of a restored Sunni caliphate has instead led, via the U.S. Iraq misadventure, to a resurgence of Shi’ite power from Iran westward through Iraq and Syria all the way to Lebanon.)

While this is a better argument than most for saying that the conflict with certain Muslim extremists constitutes a "war," it requires equating acts of terrorism with battles in a war. As I have argued before, this is a bad idea because it confers on terrorists a form of legitimacy that they do not deserve and that, for political and legal reasons, it would be better to withold from them. Blowing up embassies is a crime even when a real war is ongoing; it can't be a good idea to say that political purposes pursued by terrorists can turn crimes into acts of war.

Although Luban doesn't have a problem with the "war" label, he does have serious concerns about how that label has been used to bolster executive power since 9/11.

The real fallacy does not lie in labeling the struggle with Al Qaeda a "war," but in the false constitutional theory that gives the President a vast set of "war powers" to be used everywhere he discerns a "battlefield," which of course can be anywhere on Earth. Nothing in the Constitution suggests anything of the sort, and it is hard to see why a democratic constitution ought to do so.

Incidentally, Luban mentions the Maher Arar lawsuit and adds a point that I neglected to mention as I discussed the case in International Organizations and Law today: A federal judge dismissed Arar's suit on national security grounds. That is, the judge ruled that forcing the United States Government to defend itself against the charge that it unlawfully rendered Arar to Syria where he was tortured for a year by Syrian authorities would jeopardize the security of the United States!